Opinion filed August 31, 2011

In The

Eleventh Court of Appeals 

__________

Nos. 11-10-00374-CR & 11-10-00375-CR

__________

JOHNATHAN BEDFORD NEWMAN, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause Nos. CR13433 & CR13434

M E M O R A N D U M O P I N I O N

Johnathan Bedford Newman entered an open plea of guilty to two first-degree felony

offenses for the manufacture or delivery of a controlled substance. The jury sentenced him to 

confinement in the Institutional Division of the Texas Department of Criminal Justice for life on 

both convictions. The jury also imposed a fine of $10,000 for both offenses. Appellant 

challenges his punishment in a single issue. We affirm.
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Background Facts

Appellant’s sole issue on appeal arises from the State’s closing argument. He contends 

that his trial counsel rendered ineffective assistance by failing to object to an argument made by 

the prosecutor concerning how parole and good conduct time may affect appellant’s period of 

incarceration.

The court’s charge contained the following instruction pertaining to parole and good 

conduct time:

Under the law applicable in this case, the Defendant, if sentenced to a term 

of imprisonment, may earn time off the period of incarceration imposed through 

the award of good conduct time. Prison authorities may award good conduct time 

to a prisoner who exhibits good behavior, diligence in carrying out prison work 

assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, 

prison authorities may also take away all or part of any good conduct time earned 

by the prisoner.

It is also possible that the length of time for which the defendant will be 

imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a 

term of imprisonment, he will not become eligible for parole until the actual time 

served plus any good conduct time earned equals one-fourth of the sentence 

imposed or 15 years, whichever is less. Eligibility for parole does not guarantee 

that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct 

time might be applied to this defendant if he is sentenced to a term of 

imprisonment, because the application of these laws will depend on decisions 

made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. 

However, you are not to consider the extent to which good conduct time may be 

awarded to or forfeited by this particular defendant. You are not to consider the 

manner in which the parole law may apply to this particular defendant.

Thus, the instruction in the court’s charge tracked the language required by TEX. CODE CRIM.

PROC. ANN. art. 37.07, sec. 4(b) (Vernon 2010).

During the State’s initial closing argument, the prosecutor made a brief reference to the 

parole instruction contained in the court’s charge by stating that appellant ―becomes eligible for 

parole when his good conduct time, plus his actual time served equals a quarter of the sentence 

or fifteen years, whichever is less.‖ The prosecutor also discussed the applicable range of 
3

punishment for both offenses (five to ninety-nine years, or life) and appellant’s criminal history 

(fourteen convictions in the previous seven years, including five felony drug convictions) during 

the State’s initial closing argument.

Appellant’s trial counsel also made reference to parole and good conduct time during his 

closing argument in his plea to the jury to give appellant a twenty-year sentence. In this regard, 

counsel suggested that the jury might ―get the message to [appellant]‖ to turn his life around if he 

has the possibility of being eligible for parole after serving five years of a twenty-year sentence.

In the State’s final closing argument, the prosecutor made the following statements 

regarding parole and good conduct time:

[T]his defendant may earn – and I’ve underlined ―earn‖, and that’s an important 

word, time off of the sentence that you give him by the award of good conduct 

time. Prison authorities may award – and I want you to catch my theme here, 

good conduct time to a prisoner who exhibits good behavior, diligence in carrying 

out work – prison work assignments and attempts at rehabilitation, do you see the 

theme here? But it continues further, it is also possible that the length of time for 

which the defendant will be imprisoned might be reduced by the award of parole. 

Now we’ve got two mechanisms working in his favor. In this case he will not 

become eligible for parole until the time he has actually served, plus good conduct 

time equals one-fourth of the sentence imposed or fifteen years, whichever is less. 

Now, I want to help you understand what that means. What that means is rather 

than sit there for ten or fifteen or fourteen years, if you have good behavior and 

you exhibit that good behavior and diligence in carrying out prison work 

assignments and attempts at rehabilitation, remember when we talked about the 

things we would like to do when we punish someone, it’s all there, if he avails 

himself of it, he can earn and be awarded. That, to me, is important to you as a 

juror in making the decision, when you think about it, you – you give him the 

mechanism, if you want to be released back out here with the rest of us, I know 

your record doesn’t show us you can do that, but you convince someone else 

watching you closely for a period of time that you deserve to be among the rest of 

us, then you’ll get out. But, wait, that’s not all of it, when we talked about the 

difference life and ninety-nine years I told you about fifteen years, but there’s a 

plus in there, and I want you to be aware of that, too, you can consider these 

things, actual time served, plus good conduct time, do you know what good 

conduct time is, if you get in there and behave, you get two days credit for each 

day you serve, so that fourth becomes an eighth all of a sudden if you’re behaving 

yourself, so you just cut that fifteen in half, that’s seven and a half, if you twelve 

people give him ninety-nine years or life, in seven and a half, if he behaves 

himself, he’ll walk out that door. Now, is that an incentive to learn, to work at

prison assignments, exhibit good behavior? Son, you’ve got the rest of your life 

in prison, but if you do the things we ask, in seven and half you can be released. 

Would that make someone want to hit the bricks, go to work? I think it would. 
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Or you can give him fifteen or twenty and let him sit there for a while and bounce 

back out and come out worse than when he went in (emphasis added).

Appellant bases his ineffective-assistance-of-counsel claim on the contention that trial counsel 

should have lodged an objection to the italicized portion of the above-quoted argument.

Analysis

To determine whether appellant’s counsel rendered ineffective assistance at trial, we must 

first determine whether appellant has shown that counsel’s representation fell below an objective 

standard of reasonableness and, if so, then determine whether there is a reasonable probability 

that the result of the proceeding would have been different but for counsel’s errors. Wiggins v. 

Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 

159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App.

1999). This standard applies to claims of ineffective assistance of counsel in both the 

guilt/innocence phase and the punishment phase of noncapital trials. Hernandez v. State, 988 

S.W.2d 770, 772-73 (Tex. Crim. App. 1999).

We must indulge a strong presumption that counsel’s conduct fell within the wide range 

of reasonable professional assistance, and an appellant must overcome the presumption that, 

under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). ―[C]ounsel is 

strongly presumed to have rendered adequate assistance and made all significant decisions in the 

exercise of reasonable professional judgment.‖ Strickland, 466 U.S. at 690. An allegation of 

ineffective assistance must be firmly founded in the record, and the record must affirmatively 

demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Under normal 

circumstances, the record on direct appeal will not be sufficient to show that counsel’s 

representation was so deficient and so lacking as to overcome the presumption that counsel’s 

conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002). Rarely will the record on direct appeal contain sufficient information to permit a 

reviewing court to fairly evaluate the merits of such a serious allegation. Id. In a majority of 

cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the 

failings of trial counsel. Id.

As stated earlier, the challenged argument consisted of the following statement by the 

prosecutor: ―[I]f you twelve people give him ninety-nine years or life, in seven and a half, if he 
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behaves himself, he’ll walk out that door.‖ When viewed in isolation, the challenged argument 

was improper. This is an incorrect statement of the law because parole eligibility does not 

guarantee release. See Article 37.07, § 4(b). Furthermore, the jury is explicitly prohibited from 

considering the extent to which good conduct time may be awarded to a particular defendant or 

the manner in which the parole law may be applied to a particular defendant. Id. 

A complaint of improper jury argument is waived absent an objection at trial. 

Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). Accordingly, appellant is 

limited to presenting his improper-jury-argument complaint as an ineffective-assistance-ofcounsel issue. This case is in the same procedural posture as the circumstances in Mata v. State, 

226 S.W.3d 425, 430-31 (Tex. Crim. App. 2007). Mata also involved a claim on direct appeal 

of ineffective assistance of counsel arising from the failure of trial counsel to object to an 

allegedly improper jury argument concerning the application of parole and good conduct time. 

226 S.W.3d at 427-28. Furthermore, the appellate record in Mata was also silent regarding trial 

counsel’s reasoning for not objecting to the challenged argument.1 

The Court of Criminal Appeals noted in Mata that a reviewing court on direct appeal will 

rarely be able to fairly evaluate the merits of an ineffective-assistance claim because the record 

on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense 

counsel’s actions at trial. Id. at 430. As stated by the court:

The lack of a clear record usually will prevent the appellant from meeting 

the first part of the Strickland test, as the reasonableness of counsel’s choices and 

motivations during trial can be proven deficient only through facts that do not 

normally appear in the appellate record. It is not sufficient that the appellant 

show, with the benefit of hindsight, that his counsel’s actions or omissions during 

trial were merely of questionable competence. Rather, the record must 

affirmatively demonstrate trial counsel’s alleged ineffectiveness.

Id. (footnotes omitted). The court held in Mata that the appellant failed to rebut the presumption 

that trial counsel’s actions were reasonable because the record was silent as to why he failed to 

object to the challenged argument. Id. at 431.

Mata’s reasoning is applicable to this case because the appellate record in this appeal is 

also silent regarding the basis for trial counsel’s actions. Thus, appellant has failed to rebut the 

presumption that trial counsel’s decision was reasonable. See id. In this regard, the facts in this 

 

1

In this regard, trial counsel’s conduct at trial was not addressed in a motion for new trial.
6

case are distinguishable from those in Branch v. State, 335 S.W.3d 893, 904 (Tex. App.—Austin 

2011, pet. filed), because appellant did not present his ineffective-assistance claim in a motion 

for new trial that would have provided an avenue for exploring the reasons for trial counsel’s 

action. 

Furthermore, the improper argument that appellant challenges was not incurable and was 

in fact ―cured‖ by the written instructions contained in the court’s charge. In this regard, an 

instruction to disregard improper jury argument will cure the error in most instances. 

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The court’s charge contained 

the correct rules pertaining to the manner in which the jury should consider the application of 

parole and good conduct time to appellant’s sentence. We presume the jury followed the court’s 

instructions. Colburn v. State, 966 S.W.2d 511, 519-20 (Tex. Crim. App. 1998).

Under the second prong of Strickland, appellant must show there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different. Evidence was offered that the underlying offenses were based on appellant 

possessing 25.84 grams of methamphetamine on one occasion2and 6.34 grams of 

methamphetamine on another occasion. Appellant’s criminal record included a state jail felony 

conviction for drug possession in 2007, two state jail felony convictions for drug possession in 

2005, a misdemeanor drug possession conviction in 2003, a misdemeanor conviction for 

possessing a prohibited weapon in 2005, three misdemeanor drug possession convictions in 

2005, a driving-while-intoxicated conviction in 2007, a driving-while-license-invalid conviction 

in 2007, a misdemeanor theft conviction in 2003, and a misdemeanor burglary-of-a-vehicle 

conviction in 2005. Given the presence of the correct statement of the law contained in the 

court’s charge, the seriousness of the underlying offenses, and appellant’s lengthy criminal 

record, the appellate record does not show a reasonable probability that the result would have 

different. Appellant’s sole issue is overruled.

 

2

In addition to possessing 25.84 grams of methamphetamine on this occasion, appellant also possessed 6.24 

grams of cocaine.
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This Court’s Ruling

The judgments of the trial court are affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

August 31, 2011

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Kalenak, J.